Back in August (as I discussed in this post), a Ninth Circuit panel majority in Tekoh v. County of Los Angeles ruled that the district court was required to admit testimony of an expert on coerced confessions. In dissent, Judge Eric Miller pointed out that the expert’s testimony would have violated the principle that experts are not to testify to a witness’s credibility, as the expert’s testimony “expressly assumed the veracity of Mr. Tekoh’s account of events, thus assuming that his confession was coerced.” (Cleaned up.) Miller also invoked the elementary proposition that a district court has broad discretion to exclude expert testimony even when it is relevant.
Today over the dissent of Miller and ten other judges, the Ninth Circuit denied rehearing en banc in the case. As Judge Daniel P. Collins explains in a 22-page opinion, the panel majority’s opinion “defies settled precedent, creates a circuit split, and will have a substantial disruptive effect on the administration of justice in this circuit.” In an apparent effort to prevent en banc review, the members of the panel majority denied that their opinion means what it says, even as they failed to amend it to say what they now say it means. (Miller did not join Collins’s opinion, but the court’s order states that he voted to grant the petition for rehearing en banc.)
As I noted last time, the author of the panel opinion is Judge Kim McLane Wardlaw, who has quite a record of being summarily reversed by the Supreme Court. This case provides another apt occasion for the Court to do so, especially in light of the burden and delay that a retrial would cause.
To put things in context: The district court issued its final judgment in 2017. In 2021, Murguia wrote a panel opinion reversing the district court on grounds of a Miranda violation. In 2022, the Supreme Court ruled that a violation of Miranda does not provide a basis for a section 1983 claim. On remand, Murguia concocted her new basis for reversing the district court.